Brexit – What will it mean for Environmental Regulation?

With DEFRA refusing to confirm or deny whether the impact of Brexit is something they are looking at, what would Brexit mean for environmental…

All the signs are that an EU referendum will happen in this calendar year possibly as early as June, but more likely in September. Although the Government has until the end of 2017, if David Cameron can win some concessions from his EU counterparts he will not waste any time in calling a referendum.

What would a Brexit mean for environmental regulation? Last year we understood that DEFRA had an ongoing project to examine the possible impacts, however, this year they are refusing to confirm or deny whether it is something they are looking at.

Either way it is clear that there could be significant consequences arising from a Brexit.

Article 50 of the Lisbon Treaty (2007) provides that Member States can withdraw from the EU in accordance with their own constitutional requirements. If the result of the UK referendum is to leave, the UK Government would notify the European Council and negotiate its exit. The exit process would take some time to resolve.

There would be a number of available paths for the UK post exit. These include:

  • Remaining a member of European Economic Area/European Free Trade Association; or
  • Pursuing its own free trade agreements (i.e. go it alone); or
  • Developing its own Global Free Trade Association.

It is widely believed that the first option is the most likely. To be a member of the EEA and/or EFTA, the UK would need to submit to comply with certain EU laws a number of which relate to the environment. In those circumstances, the UK would have lost the ability to influence such laws, but still be subject to them.

Other specific considerations include:

  • International agreements such as the UNFCCC and COP21 – the Paris Agreement. Such international obligations would continue to apply to the UK.
  • Directly applicable EU controls e.g. TFSW Regulation. In the absence of such controls there would be a legislative gap the UK would need to fill.
  • Indirectly applicable controls such as Directives which the UK has to implement through its own legislation would continue to be effected through their UK equivalent but any changes and developments would not be picked up.
  • Decisions of the CJEU would not be binding.
  • The UK would still be subject to controls that apply to activities in the EU – e.g. EU ETS and aviation and controls that apply to products supplied into the EU – e.g. REACH.

The UK Government has helped to shape and influence EU environmental controls for many years. The loss of the ability to do so and the resulting impact on the body of environmental regulation in the UK, as well as the ongoing impact of EU controls to the UK and its activities, means we are better staying in the EU; at least from an environmental stand point.

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